Alito and Kagan recused in dozens of denied cases; reason for some Alito recusals unclear

Justices Samuel A. Alito Jr. and Elena Kagan have recently recused themselves in dozens of cases, many of them in cert denials.

Other Supreme Court justices often recuse themselves “but not usually in numbers seen with Kagan and Alito,” the National Law Journal reports.

Most of Kagan’s recusals seem to stem from her work as solicitor general, the story says. She has recused in two high-profile cases involving affirmative action in higher education. An Oct. 7 orders list disposing of about 2,000 cert petitions showed Kagan recused in 35 cases, while an Oct. 15 orders list showed five other recusals.

Some of Alito’s recusals may be attributable to his stock holdings, the story says. He had 15 recusals on the Oct. 7 orders list and three recusals on the Oct. 15 list. But the reason for some recusals is unclear, the story says.

As an example, the story cites Alito’s possible recusal in a case involving the Clear Air Act. He didn’t recuse himself when the court granted cert, but he did not take part in granting a routine motion. The energy companies in the case aren’t among the holding listed on Alito’s 2012 financial disclosure forms. It’s possible, the NLJ says, that he has acquired more stocks since the last disclosure.

“It is also possible, though unlikely,” the story says, “that Alito recused in the Clean Air Act case because he feels that his energy holdings, even if they are not stocks in named parties, would be affected by the outcome as part of the energy industry in general.”